A Man for All Seasons: Historical Memory and John Marshall · 8/14/2017 · Similarly, John Marshall’s reputation has been a contested site of social mem-ory. Many social actors

A Man for All Seasons: Historical Memoryand John Marshall

Daniel Frost, Clemson UniversityKeith E. Whittington, Princeton University

The heroes of American politics are often represented as timeless figures, sometimes liter-ally carved in stone. A growing literature on collective memory, however, has emphasizedthe ways in which historical reputations are socially constructed—and reconstructed—overtime. This article considers Chief Justice John Marshall as a case study in this dynamic pro-cess of constructing historical reputation. Marshall stands above all others as “the great chiefjustice,” but nonetheless his reputation has not always been secure. Surveying both citationsto Marshall’s key opinions and popular and scholarly discussions of the chief justice him-self across time, the article shows how Marshall’s reputation has been remade over timeto fit the political needs of themoment. Marshall’s durability as a historical figure has turnednot on a single set of particularly timeless accomplishments but on the diversity of his con-tributions to the constitutional canon.

Keywords: U.S. Supreme Court history, John Marshall, collective memory, judicial reputation

Chief Justice John Marshall has long been known in the United States as “the

great chief justice.”1 A larger-than-life statue of Marshall presides over the

ground floor of the U.S. Supreme Court building.2 He is routinely the subject

of book-length biographies, winning scholarly and popular attention that far ex-

ceeds what other justices have been able to command.

There is little question that Marshall left a lasting mark on the Court. He was

not the first to serve as chief justice, but by a wide margin he served the longest in

that office.3 His tenure spanned several presidential administrations and a trans-

The authors would like to thank Michelle Stone and Phillips Workman for excellent researchassistance, as well as several anonymous reviewers for their helpful comments.

1. For example, see R. Kent Newmyer, John Marshall and the Heroic Age of the SupremeCourt (Baton Rouge: Louisiana State University Press, 2001), 479. Charles F. Hobson, The GreatChief Justice: John Marshall and the Rule of Law (Lawrence: University Press of Kansas, 1996).

2. Fittingly, the statue was sculpted by the son of Justice Joseph Story, Marshall’s closest allyon the bench.

3. He served nearly six years longer than his nearest competitor, his successor Roger Taney.

Published online August 14, 2017. http://dx.doi.org/10.1086/693756Polity, volume 49, number 4 (October 2017), pp. 575–602. 0032-3497/2017/4904-0006$10.00.© 2017 Northeastern Political Science Association. All rights reserved.

formation of the party system. Perhaps most importantly, his tenure coincided

with a dramatic increase in judicial business for the Court and its emergence

as a regular player in constitutional and legal disputes. Marshall’s achievements

may seem obvious and timeless, yet the study of historical memory suggests that

few things are truly timeless. What seems important and celebrated is itself his-

torically contingent. We choose to remember what is important to us, and what is

important and valuable to us is always changing and very much of the moment.

Consider the recurrent rankings of presidents by historians. The carved stone of

Mount Rushmore and public memorials like the Washington Monument suggest

permanence. But surveys reveal that presidential fortune is often fleeting.While the

stature of presidents like Abraham Lincoln and George Washington has been se-

cure, others such as Martin Van Buren and Andrew Johnson have found fame

to be more transient.4

The goal of this article is to investigate how and why Marshall’s reputation has

persisted. There is no doubt that Marshall’s overall historical standing among Su-

preme Court justices is as secure as Washington’s is among presidents.5 The ques-

tion is what accounts for that persistence, given how historical memory is con-

structed. Rather than considering why John Marshall is systematically preferred

to Melville Fuller, the article unpacks the shifting components of Marshall’s own

legacy. We investigate Marshall’s reputation for the public at large and also within

the legal profession by tracking citation patterns to his decisions.6 How have later

generations chosen to remember John Marshall, and why do we consider him

“great”?

A major part of the answer is that there is not one John Marshall, but many.

Marshall has found a place in our collective memory by showing different facets

of himself over time. Marshall has been remembered as a dangerous nationalist

and a prudent guard against national dissolution; an adament defender of prop-

erty rights and an unscrupulous Federalist bent on protecting economic interests;

a usurper of state and federal power and a bold advocate of the Supreme Court’s

4. We have in mind “fame” in Douglass Adair’s sense, that is, a kind of “secular immortality”conferred by posterity on those who accomplish great deeds; see Douglass Adair, Fame and theFounding Fathers (New York: Norton, 1974), 24. Presidential rankings based onmore than twentysources, from Arthur M. Schlesinger, Sr.’s 1948 survey through the American Political ScienceAssociation’s 2015 poll, are helpfully summarized at http://en.wikipedia.org/wiki/Historical_rankings_of_Presidents_of_the_United_States.

5. See, for example, William G. Ross, “The Ratings Game: Factors that Influence JudicialReputation,” Marquette Law Review 79 (1996): 401–52, at 445, 450.

6. For more on the distinction between “external” and “internal” legal cultures, see LawrenceM. Friedman, The Legal System: A Social Science Perspective (New York: Russell Sage Foundation,1975), 223–24.

576 | A Man for All Seasons

role in resolving important national disputes. The reasons why he has been cel-

ebrated or criticized at some moments in American history have little resonance

at others, but Americans have consistently found new reasons for remembering

Marshall even as they have let go of their old reasons for doing so.

We begin this article with a few brief remarks about the the construction of col-

lective memory. We then investigate two kinds of data that illuminate Marshall’s

place in our collective memory: popular and scholarly writings about Marshall

throughout U.S. history; and citations to some of Marshall’s most important deci-

sions in the U.S. Supreme Court, lower federal courts, and state courts. These two

sets of sources help us understand different aspects of Marshall’s legacy. From the

popular and scholarly sources, we gain a rough sense of the image of Marshall that

was alive in the public consciousness in different periods of U.S. history. Alterna-

tively, our citation rates focus onMarshall’s reputation for a very specific audience:

federal and state judges. This second layer of data is necessary to assess how Mar-

shall’s constitutional decisions have actually been used by different courts during

different periods of U.S. history. Though there is some overlap between the two

sets of data, for the most part they tell distinctive stories about the ways that Mar-

shall’s legacy has been used by different actors and audiences. Both sets of data are

important for understanding what made “the great chief justice” great.

The Fluidity of Historical Memory

Over the past few decades, scholars have become increasingly interested in the con-

struction and significance of shared histories.7 In their pioneering work on the so-

ciology of knowledge, Peter Berger and Thomas Luckmann argue that human in-

stitutions are transmitted from one generation to the next and become accepted

as part of the objective reality of the world. In order to do so, however, individ-

uals must be socialized into the traditions that make sense of and legitimate soci-

ety.8 “Communities,” Robert Bellah and his colleagues observed,

have a history—in an important sense they are constituted by their past—

and for this reason we can speak of a real community as a “community of

memory,” one that does not forget its past. In order not to forget that past,

7. See Barry Schwartz, “The Social Context of Commemoration: A Study in CollectiveMemory,” Social Forces 61 (1982): 374–402; David Lowenthal, The Past is a Foreign Country(Cambridge, U.K.: Cambridge University Press, 1985); For a survey of scholarship in this area,see The Collective Memory Reader, ed. Jeffrey K. Olick, Vered Vinitzky-Seroussi, and Daniel Levy(Oxford, U.K.: Oxford University Press, 2011).

8. Peter L. Berger and Thomas Luckmann, The Social Construction of Reality (New York:Anchor Book, 1977), 61–62.

Daniel Frost and Keith E. Whittington | 577

a community is involved in retelling its story, its constitutive narrative, and

in so doing, it offers examples of the men and women who have embodied

and exemplified the meaning of the community. . . . The communities of

memory that tie us to the past also turn us toward the future as commu-

nities of hope. They carry a context of meaning that can allow us to connect

our aspirations for ourselves and those closest to us with the aspirations of

a larger whole and see our own efforts as being, in part, contributions to a

common good.9

Communities are imagined through the effort of social actors seeking to remake

individual identities.10

Creating and maintaining these communities of memory is no easy task. Tra-

ditions are “invented” to “inculcate certain values and norms of behavior by rep-

etition,” establishing “continuity with a suitable historic past.”11 Historic sites are

selected and preserved in a manner that shapes collective memories in a politically

useful way.12 Such historical narratives are constructed and reconstructed in re-

sponse to the changing needs of the present. Social actors need a usable past, a

past that informs contemporary needs and concerns and reinforces contemporary

affiliations and aspirations. Although routinely presented as mere found objects

or objective presentations of the facts, such narratives are subject to revision as

contemporary needs develop. Collective memory is important enough that power-

ful political and social actors have a stake in trying to manage it, but it is also

important enough that those efforts are likely to be challenged. The materials of

history are, Michel Foucault pointed out, “scratched over and recopiedmany times.”

Official histories are challenged by a “counter-memory” that denies the truth of

what has been presented.13 The presentation of the past is a site of contestation,

and even apparently durable monuments to past historical narratives can be rein-

corporated and reinterpreted by future actors.

9. Robert N. Bellah et al., Habits of the Heart (Berkeley: University of California Press,1985), 153.

10. Benedict Anderson, Imagined Communities, 2nd ed. (New York: Verso, 1991).11. Eric Hobsbawm, “Introduction: Inventing Traditions,” in The Invention of Tradition, ed.

Eric Hobsbawm and Terence Ranger (New York: Cambridge University Press, 1983), 1.12. Diane Barthel, “Getting in Touch with History: The Role of Historic Preservation in

Shaping Collective Memories,” Qualitative Sociology 19 (1996): 345–64.13. Michel Foucault, Language, Counter-Memory, Practice, ed. Donald F. Bouchard (Ithaca,

N.Y.: Cornell University Press, 1977), 139.


Remembering the Great Chief Justice: A Study of Scholarlyand Popular Sources

One such site of historical reconstruction is the the selection of American heroes

in books, monuments, and other attempts to shape collective memory. The effort

to identify the greatest American presidents in history is an example of the struggle

to embody historical traditions in individual biographies. Historical political fig-

ures can be used to teach lessons for the future and to provide symbols to pull to-

gether individuals and groups in the present. These individual stories are told and

retold, reconstructed and reimagined, to serve changing purposes. Once-familiar

features of a historical biography can be selectively edited out of the cultural mem-

ory, even as other aspects of a life can be brought to the fore, whether to be cele-

brated or pilloried.

Abraham Lincoln, for example, stands at the head of the American pantheon

of presidential heroes.14 However, our reasons for remembering Lincoln have

changed over time. Merrill Peterson persuasively demonstrated the presence of five

distinct themes in the presentation of Lincoln in popular and scholarly sources.15

But that multifaceted Lincoln apparently has not penetrated into the public con-

sciousness, where today Lincoln’s role as the Great Emancipator overwhelms all

others.16 The public perception has undoubtedly been bolstered by the increasing

emphasis of textbooks on this aspect of Lincoln.17 An earlier generation may have

remembered Lincoln as the savior of the Union, but by the late twentieth century

the trials of race took precedence over the trials of nationhood and the collective

memory of Lincoln was adjusted accordingly.

Similarly, John Marshall’s reputation has been a contested site of social mem-

ory. Many social actors have used his actions, character, and legal decisions to ad-

vance their own agendas. The causes he for which he is an exemplar have been

many, and the aspects of his life that have been remembered have evolved with

the issues that have faced America. This section reviews the contribution of those

outside the courts—scholars, historians, lawyers, and political actors—to Mar-

14. Marc Landy and Sidney M. Milkis, Presidential Greatness (Lawrence: University Press ofKansas, 2000), 114.

15. Merrill D. Peterson, Lincoln in American Memory (New York: Oxford University Press,1994).

16. Ibid., 348–58.17. Barry Schwartz and Howard Schuman, “History, Commemoration, and Belief: Abraham

Lincoln in American Memory, 1945–2001,” American Sociological Review 70 (2005): 183–203.


shall’s historical reputation. The evidence suggests that he has endured not by

standing as a rock, the same yesterday and today and forever. Marshall persists

because his accomplishments are diverse and profound.

To gain a rough sense of how Marshall has been viewed in popular and schol-

arly writings from 1835 to 2009, we selected a sample of ten sources per decade

that treated Marshall’s legacy in some way, with a total of more than 170 sources.

We used two methods to locate our sources. First, we used Google Books to con-

duct full-text searches in order to identify books with a substantive discussion of

JohnMarshall. Google Books allows the user to search for key terms within specific

date ranges and has a large database of publically available texts. This method al-

lowed us to locate many sources, particularly those in the 1800s. Second, we

searched the libraries of Princeton University and Clemson University for general

histories of the United States that discussed Marshall in some way. In each source

we looked for the dominant themes of Marshall’s legacy: what was he remembered

for and why he was considered important or significant. For the most part, our

sample was based on convenience: the availability of sources on Google Books

and the Princeton University and Clemson University libraries. We were able to

locate ten sources in every decade except the 1860s, when the country was preoc-

cupied with the Civil War.

For the first several decades after Marshall’s death we had difficulty finding ten

sources per decade, and thus we had to use all the sources we could find. Almost

all of our sources from that period came from Google Books. Beginning around

1880, there were more sources to choose from. For those later years, we contin-

ued to draw frommany different kinds of sources, but we chose to include a larger

proportion of general histories (approximately 55% of the total, compared to 7%

in the decades before 1880), on the assumption that general histories must try to

situate individuals within a broader historical narrative and thus would be a use-

ful prism to gauge Marshall’s significance and historical relevance. We supple-

mented our bias toward general histories with various other kinds of writings:

general histories, encyclopedias, law review articles, articles in the popular press,

biographies, scholarly works, and others.

We note, at the outset, that this method is imprecise—some authors empha-

size themes about Marshall that others neglect, and some set trends that others fol-

low. The extent to which our sources are representative of the broader social cli-

mate is also debatable, both because we were constrained by the availability of

sources and because any selection of sources will fail to include some voices. Still,

by looking at ten sources per decade, and particularly by focusing on general his-

tories, we hope to get a rough measure of how Marshall’s legacy has evolved over


time.18 Changes in the ways that authors situate Marshall vis-à-vis his contempo-

raries, praise or criticize his personal attributes, and reconstruct his legacy will

allow us to say something valid about how Marshall has been viewed across time.

We found that while there are some continuities in Marshall’s legacy—such as that

he was an excellent judge who strengthened the power of the federal government

and established the judiciary as a branch of government equal to the executive and

legislative branches—people can see enough sides in Marshall to make him inter-

esting and useful to many different political actors and political causes. Therefore,

reviewing the historical sources in this way provides useful information that is not

captured in our other measures about how Marshall has been appropriated across

history, and no other method could reasonably accomplish the same purpose.19

Based on our reading of these sources, we divided Marshall’s legacy into four

periods: from Marshall’s death (1835) until about 1890, when his personal qual-

ities and judicial excellence were prominent; from 1890 to 1940, when Marshall’s

connection to Hamilton and his conflict with Jefferson were emphasized; from

1940 to 1970, when authors focused on Marshall’s support for business interests

and his protection of the right to contract; and from 1970 to 2009, in which Mar-

shall is remembered for establishing judicial review and strengthening the national

government. This periodization is not one we would have chosen prior to read-

ing the sources; indeed, the timing of some trends surprised us. However, we tried

to let the sources drive the periodization, rather than sseeking to fit the sources to

pre-established periods.

From Marshall’s death until about 1890, Marshall was remembered as an ex-

cellent judge with exemplary personal qualities. His reputation was founded less

on the substance of his work or the merits of his accomplishments than the con-

tent of his character. His intelligence was often highlighted: Marshall was remem-

bered as “one of the most brilliant intelligences of the age.”20 Marshall was praised

18. The inspiration for this method of “historical sweeps” is, of course, David R. Mayhew.See David Mayhew, Divided We Govern, 2nd ed. (New Haven, Conn.: Yale University Press,2005), 37–50; David R. Mayhew, America’s Congress (New Haven, Conn.: Yale University Press,2000), 29–70.

19. Of course, it would be possible to write a much more detailed and extensive review ofMarshall’s legacy, something akin to Merrill D. Peterson’s The Jefferson Image in the AmericanMind (New York: Oxford University Press, 1960). For the purposes of this article, we decided touse a much more limited approach in this section in order to complement the other forms ofdata presented in our article.

20. Southern Quarterly Review, “Review of The Memoirs of Aaron Burr,” Southern QuarterlyReview 7 (1845): 220–50, at 245. See also John MacGregor, The Progress of America from the Dis-covery by Columbus to the Year 1846 (London: Whitaker and Co., 1847), 244; H.J. Herring and


for creating a new, “almost original system of National Jurisprudence adapted to

an experimental government”21 Though not yet referred to explicitly as “the Great

Chief Justice,” Marshall was definitely ranked as first among his brethren: Mar-

shall was “the brightest ornament [of the Court]. During this period of his chief-

justiceship . . . he was unremittingly employed in rearing that monument more du-

rable than brass, which lives in his written constitutional opinions, and has won for

him the title of the EXPOUNDER OF THE CONSTITUTION.”22 Another author

made the point more succinctly and extravagantly: Marshall was “Wisdom on the

seat of Power, pronouncing the decrees of Justice.”23 Marshall was to be cele-

brated for his wisdom and judgment, but the content of his constitutional opin-

ions was discreetly tucked away.

It was during this period that Marshall received the most praise for his private

virtues. Marshall was remembered as an exemplary family man and friend: “Chief

Justice Marshall was in the domestic circle exactly what a wife, a child, a brother,

and a friend would most desire.”24 Many authors also highlighted his religious con-

victions: “At a period when skepticism was fashionable among cultivated men

[Marshall] never uttered a word calculated to throw doubt upon the divine origin

of Christianity.”25 Authors also noted his humility and jovial character. In an oft-

told story, a plainly-dressed Marshall offered to carry a turkey home for a young

gentlemanwho could not find anyone else to do the job.Marshall “actually received

a shilling for his services which proved a very costly retainer to the young man in

the amount of chagrin he endured when he found that his porter was the Chief

Justice of the United States.”26 Indeed, sometimes the praise of Marshall bordered

on the hagiographic:

21. “JohnMarshall: Chief Justice of theUnited States,” FamilyMagazine 3 (1843): 97–98, at 97.22. James Wynne, Lives of Eminent Literary and Scientific Men of America (New York: D.

Appleton & Company, 1850), 299.23. Rufus Wilmot Griswold, The Prose Writers of America: With a Survey of the History,

Condition, and Prospects of American Literature (Philadelphia: Carey and Hart, 1847), 85–88.24. Louisa Caroline Tuthill, Success in Life: The Lawyer (New York: G.P. Putnam, 1850), 48.25. The New American Encyclopedia, ed. George Ripley and Charles A. Dana (New York: D.

Appleton and Company, 1865), 218–23.26. Evert A. Duckinck and George L. Duyckinck, Cyclopedia of American Literature, vol. 1

(New York: Scribner, 1855), 405. See also Charles C. Savage, Illustrated Biography (Buffalo, NY:Phinney & Co., 1856), 411.

James Barton Longacre, The National Portrait Gallery of Distinguished Americans: With Biograph-ical Sketches (Philadelphia: D. Rice & A.N. Hart, 1854), 13; George van Santvoord, Sketches ofthe Lives and Judicial Services of the Chief-Justices of the Supreme Court of the United States(New York: Charles Scribner, 1856), 256; L.J. Bigelow, Bench and Bar: A Complete Digest of theWit, Humor, Asperities, and Amenities of the Law, rev. ed. (New York: Harper and BrothersPublishers, 1871), 121.


I might speak of that rare combination of virtue and wisdom which his pri-

vate as well as his public life manifested; of that wise and considerate pro-

priety of conduct; -that natural dignity of deportment; -that love of truth

and deep sense of moral and religious obligation; that unaffected modesty;

that simplicity of character, manners, dress and deportment; that deep sen-

sibility and tenderness; -that ardent love of home and attachment to the

pleasures of the domestic circle; that respect, courtesy and kindness which

he always manifested for the female sex; that absence of all selfish feeling;

-that benevolence, and that kindly charity which was not only a principle

and rule of life, but an innate sentiment of the heart.”27

Around 1890, our sources begin to say less about his personal characteristics

and begin to emphasize Marshall’s connection to Hamilton and his conflict with

Jefferson.28 Just as the newly established American Bar Association and the Pop-

ulist movement began to square off over the legitimacy of judicial review and con-

stitutional protections for property rights, Marshall began to take on a more ideo-

logical and partisan cast.29 Marshall was increasingly portrayed as Hamilton’s

“judicial exponent”30 on the Court, at times in decidedly negative terms. One au-

thor writes that Marshall carried the Federalist “usurpation of power to the utter-

most limits . . . to fix it there for a century to come.” The Marbury (1803) deci-

sion “completed the process of usurpation of power and destruction of democratic

control which was begun with the first arrangements for a constitutional conven-

tion.”31 This same author sees the Dred Scott (1857) decision as a continuation of

Marshall’s usurpationist legacy.32 Critical appraisals were in the minority, how-

ever, as other authors cast Marshall’s nationalist opinions in a positive light: “But

27. William Banks Slaughter, Reminiscences of Distinguished Men (Milwaukee, Wisc.: God-frey and Crandall, 1878), 117.

28. See Henry Adams, History of the United States, Vol. II (New York: Charles Scribner’sSons, 1891), 146–47; John Bach McMaster, A History of the People of the United States (NewYork: D. Appleton and Company, 1895), 168; Willis Mason West, American History and Gov-ernment (Boston: Allyn and Bacon, 1913), 405; Goldwin Smith, The United States: An Outline ofPolitical History (New York: Macmillan, 1901).

29. See, for example, Davison M. Douglas, “The Rhetorical Uses of Marbury v. Madison:The Emergence of a ‘Great Case,’ ” Wake Forest Law Review 38 (2003): 375–413; William G.Ross, A Muted Fury (Princeton, N.J.: Princeton University Press, 1994).

30. Talbott Fox Fontaine, A Study in Alexander Hamilton (New York: The Neale PublishingCompany, 1911), 94.

31. A.M. Simons, Social Forces in American History (New York: Book League of America,1911), 126.

32. Ibid., 259.


for all of [the Republicans’] contempt,Marshall did not quail. Doffing the neutrality

of an ideal judge he boldly set himself the task of shaping the constitution in its

most plastic period. . . . No greater deed of firm leadership has been performed

in our country than this persistent assertion of the vital will of the federal republic.”33

From about 1940 through the mid-1970s, our sources focused more and more

on Marshall’s support for business interests and his protection of contracts.34 Al-

though the New Dealers might have been able to co-opt Marshall to their consti-

tutional project in the 1930s, once the Lochner Court was vanquished in 1937,

the disquieting connections between Marshall and the interests of property proved

to be more salient.35 This is an aspect of Marshall’s legacy that received scant or

no attention in our sources up to this period. As one writer saw it,

Marshall’s role was to effect a nexus between the property interests under

an expanding industrialism and the judicial power under a federal system

of government. He was to be the strategic link between capitalism and con-

stitutionalism. Rarely in American history has the exterior tension of events

been matched so completely by an interior tension of preparation and pur-

pose on the part of the exactly right man.36

Often the point was made in the form of a criticism: “As a phenomenally success-

ful young lawyer, he had amassed property and learned how to use the law to pro-

tect and magnify it. Now, by good strategy, he had been deposited as a kind of legal

33. John Spencer Bassett, Short History of the United States (New York: The Macmillan Com-pany, 1913), 359.

34. According to one author, Marshall’s great decisions can be divided into two main cat-egories: “Those representing conflict between nationalism and states rights, and those repre-senting, in addition, the sanctity of contracts.” See Frank W. Wellborn, The Growth of AmericanNationality: 1492–1865 (New York: MacMillan Company, 1943), 470. See also Robert E. Riegeland David F. Long, The American Story, vol. 1 (New York: McGraw-Hill Book Company, 1955),274; Harold Underwood Faulkner, American Political and Social History, 7th ed. (New York:Appleton-Century-Crofts, 1957), 220–21; Richard N. Current, Harry T. Williams, and FrankFreidel, American History: A Survey (New York: Alfred A. Knopf, 1959), 237; Charles Sellersand Henry May, A Synopsis of American History (Chicago: Rand McNally and Co., 1963), 121.James M. Merrill, The USA: A Short History of the American Republic (Philadelphia: J.B. Lippin-cott Company, 1975), 82.

35. On the ambivalent relationship between the New Deal and John Marshall, see Peter H.Irons, The New Deal Lawyers (Princeton, N.J.: Princeton University Press, 1993), 295; Max Ler-ner, “John Marshall and the Campaign of History,” Columbia Law Review 39 (1939): 396–431;Howard Gillman, “The Struggle over Marshall and the Politics of Constitutional History,” Po-litical Research Quarterly 47 (1994): 877–86; George Thomas, “New Deal ‘Originalism,’” Polity33 (2000): 151–61.

36. Max Lerner, Ideas are Weapons (New York: Viking Press, 1939), 29.


Trojan horse in the camp of the enemy . . . [one of Marshall’s main objectives was

to] fortify and sanctify the rights of property against interference at the hands of

the people’s representatives.”37 Indeed, this period saw perhaps the peak of criti-

cism of Marshall:

Politically the national spirit was nowhere better expressed than in the de-

cisions of Chief Justice John Marshall of the Supreme Court. This grim old

Hamiltonian, who held his high post for thirty-four years after John Adams

placed him there in 1801, was often an inferior judge but always an out-

standing statesman. . . . Marshall’s ringing decisions, couched in crystal-

clear language and supported by adroit logic, were intended as propaganda

documents. They served their purpose admirably.38

By contrast, since the mid-1970s, Marshall’s reputation has consolidated around

three main themes: Marshall was a “great” chief justice, he strengthened the na-

tional government, and he established judicial review. Here are two examples:

The Court, in the first decade and a half of its existence, was an unsure and

insecure institution. It lived in the shadow of the Congress and the Presi-

dency, but under Marshall the Court became far more assertive and estab-

lished the practice of judicial review, and through judicial review its influence

on American society and politics. Marshall’s talents as a judicial statesman

have been described as “pre-eminent—first with no one second.”39

—

It is simply beyond dispute that he, more than any other individual in the his-

tory of the Court, determined the developing character of America’s federal

constitutional system. It was Marshall who raised the Court from its lowly,

if not discredited, position to a level of equality with the executive and the

37. WilliamHarlan Hale, TheMarch of Freedom (New York: Harper and Brothers Publishers,1947), 142–43.

38. Ray Allen Billington, Bert James Loewenberg, and Samuel Hugh Brockunier, The UnitedStates: American Democracy in World Perspective (New York: Rienhard and Company, Inc.1947), 136–38. See also Riegel and Long, American Story, 142, 274 (see note 34 above); Thomas A.Bailey, The American Pageant: A History of the Republic (Boston: Little, Brown and Co., 1961),233; Sellers and May, Synopsis of American History, 121 (see note 34 above); Merrill, The USA: AShort History, 82 (see note 34 above).

39. J.D. Lees, R.A. Maidment, and M. Tappin. American Politics Today (Manchester, U.K.:Manchester University Press, 1985), 27–28; see also G. Edward White, The American JudicialTradition (New York: Oxford University Press, 1988), 33; and J. Jackson Barlow, The New Fed-eralist Papers (Boston: University Press of America, 1988), 211.


legislative branches—perhaps even to one of dominance during the heyday of

his chief justiceship.40

In this period, Marshall continues to be remembered as our greatest Justice

and a central actor in the development of constitutional law. As one author put

it: “John Marshall is at the top of every list of Supreme Court greats. He was not

merely the expounder of our constitutional law, but was also its author, its creator.”41

As with other American leaders, Marshall’s life and contributions were capa-

cious enough to offer a variety of reconstructions suited to the times and pur-

poses of various writers (and their readers). The four periods we just described

highlight different aspects of Marshall’s legacy. In the first period (1835–1890),

the emphasis on Marshall’s personal characteristics and virtues fits in with the

general focus on character development that was prominent in didactic literature

of this time. As education scholar B. Edward McClellan put it, just as Americans

were moving towards more democratic politics and increased personal mobility,

“they moved in precisely the opposite direction in the realm of morals and per-

sonal behavior, abandoning the relaxed style of the eighteenth century in favor of

an insistence on rigid self-restraint, rigorous moral purity, and a precise cultural

conformity.”42 This period was the most difficult for us to locate sources that dis-

cussed Marshall’s legacy, and many of the sources we did find had an unambig-

uous didactic purpose.43 Given the general emphasis on virtue and character in

the writing of this period, it comes as no surprise that writers were particularly

attentive to Marshall’s private virtues.

Marshall’s connection to Hamilton was emphasized in the sources beginning

in our second period of analysis (roughly during 1890 to 1940). The theme is not

surprising given Hamilton’s influence on Marshall and the extent to which Mar-

shall enacted Hamilton’s ideas as chief justice, especially in McCulloch v. Mary-

land (1819).44 The connection to Hamilton became prominent after 1890 in part

40. Henry J. Abraham, Justices, Presidents, and Senators (Lanham, Md.: Rowman and Little-field Publishers, 1999), 62.

41. Bernard Schwartz, A Book of Legal Lists (Oxford, U.K.: Oxford University Press, 1997), 5.42. B. Edward McClellan, Moral Education in America (New York: Teachers College Press,

1999), 16.43. Titles of works such as Lives of Eminent Literary and Scientific Men of America; Rem-

iniscences of Distinguished Men; Lives of Illustrious Men of America: Distinguished in the Annalsof the Republic as Legislators, Warriors and Philosophers; The National Portrait Gallery of Dis-tinguished Americans: With Biographical Sketches, suggest a didactic purpose on the part of theauthors. Titles such as these fade towards the end of the nineteenth century.

44. McCulloch v. Maryland, 17 U.S. 316 (1819).


because Hamilton’s reputation became more politicized then. Stephen F. Knott,

who chronicles the peaks and valleys of Hamilton’s reputation in Alexander Ham-

ilton and the Persistence of Myth, argues that white Northern Republicans be-

lieved the outcome of the Civil War had vindicated Hamilton. During the Gilded

Age, “Northerners hailed Alexander Hamilton as an indispensable figure, eclipsed

only by Washington as the father of the Union.”45 As our sources show above,

Marshall’s role in implementing Hamilton’s vision of a strong federal govern-

ment and a national commercial economy was both praised and criticized, but

the dominant tone of this period was positive.

The same cannot be said of our next period, 1940–70. Here the connection to

Hamilton remained important, but our sources focused on Marshall’s support of

business interests and the protection of strong property rights, for example, in

Dartmouth (1819) and Gibbons (1824). Many (but not all) of the sources in this

period cast Marshall as an ingenious plutocrat, using his privileged position within

the judiciary to further the interests of his class. The stockmarket crash of 1929 and

subsequent Great Depression convinced many that Hamilton’s vision of a com-

mercial republic built on a free market was fundamentally mistaken; they thought

that Marshall’s role in laying the legal groundwork for the implementation of Ham-

ilton’s economic theories could not be ignored.46

The tide turned for Marshall’s reputation in our fourth period, from 1970 to

the present, when the salience of the class struggles of the early twentieth century

was supplanted by that of the civil rights struggles of the latter twentieth century.

Marshall’s nationalism and valorization of judicial supervision of government of-

ficials lent itself naturally to a political and constitutional world remade by the

civil rights movement and the Warren Court. One might think that conservatives,

who have been very critical of what they see as judicial activism, would reject Mar-

shall and Marbury for (allegedly) inaugurating judicial review. However, Robert

Bork summed up the mainstream conservative viewpoint in 1990 by saying that

“even those of us who deplore activism admire Marshall, and it is clear that Mar-

shall was, in some respects, an activist judge.” Bork rescues Marshall by claiming

that “his activism consisted mainly in distorting statues; . . . his constitutional rul-

ings, often argued brilliantly, are faithful to the document.”47 Other critics of judi-

45. Stephen F. Knott, Alexander Hamilton and the Persistence of Myth (Lawrence: Univer-sity Press of Kansas, 2002), 67.

46. Ibid., at 112: “Those in search of scapegoats responsible for the shattered Americaneconomy fell on Hamilton.”

47. Robert H. Bork, The Tempting of America: The Political Seduction of the Law (NewYork: The Free Press, 1990), 21.


cial review deny that Marshall was an activist judge in any significant sense. Raoul

Berger argued that Marshall “flatly repudiated” the idea that judges could change

the meaning of the Constitution by interpretation,48 and Matthew J. Franck went

so far as to say that Marshall “was neither an activist nor a nationalist.”49 Thus,

the enemies of judicial activism are generally not the enemies of Marshall.

Marshall and the Constitutional Canon: A Study of Citations

Unlike other important historical figures, such as presidents, Supreme Court jus-

tices have the additional role of speaking authoritatively to judges, both present

and future. Legal practice is highly abstract and specialized, and thus it should

not come as a surprise that Marshall’s legacy is constructed somewhat differently

within the legal profession than it is in the public at large. Judges have to care about

case law and precedent in a way that the general public does not, and the output

of a “great” justice such as Marshall can be an important symbolic resource for

judges as they seek to justify their positions.

In this section we assess how Marshall’s opinions have been cited and used by

the U.S. Supreme Court, lower federal courts, and state courts. The way that some

of Marshall’s opinions have become “canonical”50—or ceased to be canonical—

tells us something important about how he has been viewed within the legal pro-

fession. The formation of canons is parallel in some ways to the elevation and

maintenance of famous historical figures. Both involve the collective memory of

historical artifacts deemed important to the transmission of contemporary culture.

The audience for such canons may be more limited and specialized than those

reached by secondary school textbooks or public monuments, but the effort to se-

lect for preservation and to interpret these various cultural artifacts is similar.

As John Marshall was arriving at the U.S. Supreme Court, judicial business

was picking up.51 The Court had the opportunity to regularly issue decisions in

48. Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amend-ment, 2nd ed. (Indianapolis, Ind.: Liberty Fund, 1997 [1977]), 430; see 428–33.

49. Matthew J. Franck, Against the Imperial Judiciary: The Supreme Court v. the Sovereigntyof the People (Lawrence: University Press of Kansas, 1996), 55.

50. J.M. Balkin and Sanford Levinson, “The Canons of Constitutional Law,” Harvard LawReview 111 (1998): 964–1022; Richard A. Primus, “Canon, Anti-Canon, and Judicial Dissent,”Duke Law Journal 48 (1998): 243–303; Ken I. Kersch, Constructing Civil Liberties (New York:Cambridge University Press, 2004); Robert L. Tsai, “Sacred Visions of Law,” Iowa Law Review90 (2005): 1095–1161.

51. See R. Kent Newmeyer, John Marshall and the Heroic Age of the Supreme Court (BatonRouge: Louisiana State University Press, 2001), 146–57.


significant constitutional cases over the course of Marshall’s tenure, althoughmany

of his most important constitutional opinions were not written until Marshall’s sec-

ond and third decades on the Court. Of course, Marshall was also instrumental in

making an important change in how the Court issued judgments, with the estab-

lished and common practice of seriatim opinions being replaced by a single opinion

of the Court announcing the judgment and its rationale. Having given the Court

a single voice, Marshall was also able to position himself as the speaker of that voice

in nearly every significant constitutional case that came before the bench during his

tenure. Few judicial eras were as aptly named after the chief justice who presided

over them as was the Marshall Court.52

Not all of those constitutional decisions have proven equally important over

time, but a large number have commanded continued attention from the courts

ever since they were issued. Figure 1 lists the most well-known constitutional de-

cisions issued by the Marshall Court, ranked by the number of citations in later

U.S. Supreme Court cases from 1801 to 2012.53

This simple measure readily separates the Marshall Court’s decisions into more

and less important ones. At least judging by the Court’s own citation patterns, cases

such as Stuart v. Laird (1803)54 and United States v. Schooner Peggy (1801)55 have

little claim to canonical status, at least when the entire period from 1835 to the pres-

ent is considered. By contrast, cases such as McCulloch v. Maryland (1819)56 and

Marbury v. Madison (1803)57 stand far above them, with obvious continued rele-

vance for the justices.

The consideration of individual cases is a reasonable starting point for assess-

ing the historical reputation of John Marshall.58 Opinions are the primary work

product of the justices, and constitutional decisions are among the Court’s most

high-profile and important exercises of political power. A justice may not be

52. This article focuses on Marshall’s constitutional cases given their broad salience. Forconvenience, we will simply refer to the opinions of the Marshall Court, though our referenceis specifically to the constitutional cases.

53. The data for all tables and figures are drawn from Westlaw’s Citing References function;the list of notable cases included in Figure 1 is based on the senior author’s assessment of themost important cases.

54. 5 U.S. 299 (1803). But see Bruce Ackerman, The Failure of the Founding Fathers (Cam-bridge, Mass: Harvard University Press, 2007).

55. 5 U.S. 103 (1801). But see Mark A. Graber, “Establishing Judicial Review? SchoonerPeggy and the Early Marshall Court,” Political Research Quarterly 51 (1998): 221–39.

56. 17 U.S. 316 (1819).57. 5 U.S. 137 (1803).58. See also Michael J. Klarman, “How Great Were the ‘Great’ Marshall Court Decisions?,”

Virginia Law Review 87 (2001): 1111–84.


known exclusively by his or her opinions, but the historical resonance of those

opinions will help determine the continuing salience and significance of the jus-

tice in our historical memory. Especially when judicial opinions are closely asso-

ciated with their author, the rise and fall of those opinions will significantly shape

how (and whether) the author is remembered.59

Beginning to get a handle on the cases that make up Marshall’s legacy requires

thinking across time and audiences. The U.S. Supreme Court is not the only ju-

dicial audience for legal opinions. While we can anticipate that other courts will

follow its lead and be influenced in their pattern of citation by many of the same

considerations that drive the Supreme Court justices, there are some potential

differences in the salience of cases for different judicial actors. The concern with

historical reputation is also necessarily diachronic in nature. The goal is not only

to understand how and why Marshall is remembered today but also to under-

59. The judicial citation and interpretation of such opinions is, of course, only a startingpoint. The judiciary’s own use of precedents is informative, but the courts are a highly special-ized audience and their interests in historic judicial opinions may not perfectly reflect how otheraudiences view such opinions.

Figure 1. Notable Constitutional Decisions of the Marshall Court, Ranked by the Num-ber of Citations by the U.S. Supreme Court, 1835–2012Source: Westlaw’s Citing References function.


stand how he has been remembered across time. We should be sensitive to the

particular historical contexts that can drive citation patterns.

Table 1 presents the rank orders of the top six Marshall Court cases in later

citations by the Supreme Court across different time periods and court systems.60

The table distinguishes between citations by the U.S. Supreme Court, the lower

federal courts, and the state supreme courts, and within four different historical

eras. Raw data for this table is included in the Appendix. Some cases, such as

Dartmouth College v. Woodward (1819), were cited heavily early in the nation’s

history but faded in importance; others, such as Marbury, were initially over-

looked but later became central to the Court’s work and self-understanding. Ranks

are given in the table only for those cases that ranked among the top five cases in

each period. However, not every case that ranked that highly appears in our table,

because we excluded some cases that were important only briefly. For example,

in the 1930–59 period, McCulloch was the most-cited Marshall decision on the

U.S. Supreme Court, followed by Gibbons v. Ogden (1824) and Cohens v. Virginia

(1821). The fourth most-cited Marshall opinion in that period was Osborn v. Bank

of the United States (1824), a case that does not have continued salience and there-

fore does not appear in our table of prominent Marshall decisions. In the ranking

for the 1930–59 period, Osborn was followed by Marbury, a case whose impor-

tance was rising rapidly.

The periodization of the tables does not reflect hard-and-fast eras in American

constitutional history, but it does mark a useful cut at identifying the underlying

historical patterns. The cases that are most often cited by the U.S. Supreme Court

are generally familiar. However, the prioritization over time of these cases may be

more surprising. As the revisionist literature has contended, Marbury is remark-

ably absent from the Court’s most-cited cases through the nineteenth century.61

Marshall’s legacy on the Court for over a century turned less on his pioneering

effort to justify the power of judicial review than on his understanding of prop-

erty rights and federal-state relations. By contrast, in the lower federal courts,

Marbury was consistently cited in all periods, perhaps because these courts were

routinely asked to define the jurisdiction of the federal courts. For similar reasons,

these courts routinely cited Cohens, a case that decided that state court rulings

60. Westlaw provides the number of citations to each case by type of court (Federal Su-preme Court; Federal Circuit and District Courts; and State Courts), and we aggregated thenumbers for each of our three categories.

61. Robert Lowry Clinton, Marbury v. Madison and Judicial Review (Lawrence: UniversityPress of Kansas, 1989).


could be reviewed by the U.S. Supreme Court if the defendant claimed that his

rights under federal law had been violated. Similarly, the state courts were even

more preoccupied with federal constitutional rights against the state governments

and the scope of state power under the Constitution. Dartmouth, which held that

states must respect contracts that predated the states themselves, was the most-cited

case in the state courts from 1801 to 1929 and was the second most-cited case in the

1930–59 period. The other courts also cited Dartmouth frequently, especially in the

1870–1929 period, but this case was clearly more central to the work of the state

courts than it was to the work of the other courts.

In the figures that follow, we compareMarbury with other important Marshall

cases in the different court systems. This familiar case can provide a baseline for

thinking about the changing fortunes of other cases in the courts. Marbury was

routinely cited by judges over the course of the nineteenth century (often for issues

other than the existence of the power of judicial review), but the case underwent

Table 1. Rank Orders of Prominent Marshall Court Cases in Later Court Citations

1801–1869 1870–1929 1930–1959

USSC Federal State USSC Federal State USSC Federal State

McCulloch 2 2 2 1 5 1Gibbons 3 2 1 2 2 2 4Marbury 4 5 5 3 5 4 3Cohens 5 4 3 3 3Fletcher 1 2 4Dartmouth 4 1 5 4 1 2

1960–2012 1801–2012

USSC Federal State USSC Federal State

McCulloch 2 2 1 2Gibbons 3 3 3 2 3 5Marbury 1 2 1 3 2 1Cohens 4 4 5 5 5Fletcher 4Dartmouth 3

Notes: USSC 5 U.S. Supreme Court. Rank within each historical period for each case is based on thenumber of citations by the U.S. Supreme Court, federal circuit and district courts, and state supremecourts, respectively. Ranks for only the first five cases in each period are included.Source: Westlaw’s Citing References function.


an explosive growth in attention in the post–civil rights era.62 Marshall’s current

reputation is firmly rooted in the legacy of Marbury, but this was not always the

case. Other cases, such as Gibbons and McCulloch, have eclipsed Marbury in the

past, just as Marbury eclipses those decisions now.

The U.S. Supreme Court’s own citation patterns reveal the shifting fortunes of

Marbury andMcCulloch. Given the relative paucity of judicial opinions produced

by the U.S. Supreme Court, the patterns implicit in its citations are more uneven

than what would appear in a more extensive judicial system handing down a larger

number of cases each year. Nonetheless, the basic tendencies are evident even at

the level of the Court. Figure 2 shows a five-year moving average of citations in

the U.S. Supreme Court toMarbury andMcCulloch over time. The two cases stand

for starkly different constitutional propositions and represent two distinct sides

of Marshall’s jurisprudential legacy. Especially in the later twentieth century,Mar-

bury stands for judicial enforcement of legal limits on legislative power.63 McCul-

loch, by contrast, emphasized the expansive scope of congressional power in rela-

tion to the states.64 In the early nineteenth and late twentieth centuries, citations

to Marbury and McCulloch followed similar patterns (though McCulloch is less

prominent in recent decades in other courts). Of greater interest is the divergence

between the two cases in the first decades of the twentieth century. As the Court

focused its attention on the growing administrative state, McCulloch achieved its

greatest prominence. Marshall’s place in the collective memory rode on a story

of congressional power adequate to address national problems. For example, in

1911, the Court cited McCulloch to sustain a congressional act that prohibited

the interstate shipment of “adulterated” food or drug products.65 Later, in the

New Deal period, for both the Court and its commentators, McCulloch had its

greatest salience as the justices debated the scope of congressional powers. New

Dealers welcomed and celebrated Marshall’s apparent foresight in emphasizing

the broad authority of Congress to act in the national interest and judicial deference

to controversial exercises of that authority.66 Citations to McCulloch continued

62. Keith E. Whittington and Amanda Rinderle, “Making a Mountain Out of a Molehill?Marbury and the Construction of the Constitutional Canon,” Hastings Constitutional LawQuarterly 39 (2012): 823–60.

63. Whittington and Rinderle, “Making a Mountain out of a Molehill” (see previous note).64. Robert G. McCloskey, The American Supreme Court, 5th ed. (Chicago: University of

Chicago Press, 2010 [1960]), 51.65. Hippolite Egg Co. v. U.S., 220 U.S. 45 (1911).66. For example: “The conception of the nation which Marshall derived from the Consti-

tution and set forth in M’Culloch v. Maryland is [his] greatest single judicial performance.” See


throughout the twentieth century, but after the constitutional revolution of 1937

was accomplished, that decision no longer defined Marshall’s legacy. Especially

afterWickard v. Filburn (1942) held that Congress could regulate any activity which,

in the aggregate, has a substantial effect on interstate commerce,67 there was little

debate over the scope of Congress’s power to regulate interstate commerce.68 By

contrast, after Earl Warren joined the Court in 1953, Marbury became the most

visible case inMarshall’s repertoire. TheWarren Court’s bold invocation of judicial

review (and later of judicial supremacy 69) in order to strike down state and federal

legislation naturally raised questions about the Court’s authority.

Figure 3 compares Marbury’s trend with that of Gibbons in the lower federal

courts. In that figure, the outsized growth of Marbury in the late twentieth cen-

tury obscures the importance of the events of the first century and a half of Amer-

Figure 2. Five-Year Moving Average Number of U.S. Supreme Court Citations toMarbury and McCulloch, 1801–2012Source: Westlaw’s Citing References function.

67. 317 U.S. 111 (1942).68. David P. Currie, The Constitution in the Supreme Court: The Second Century, 1888–1986

(Chicago: University of Chicago Press, 1990), 238.69. Copper v. Aaron, 358 U.S. 1 (1958).

Felix Frankfurter, “John Marshall and the Judicial Function,” Harvard Law Review 69 (1955):217–38, at 219.


ican constitutional history, but a closer look at the pre-1941 portion of the figure

shows the relative significance of Gibbons from the Gilded Age through the New

Deal, whenGibbonswas cited muchmore often thanMarbury was. LikeMcCulloch,

Gibbons was Janus-faced. Gibbons stands both for the proposition that the federal

government has ample powers to regulate interstate commerce70 (which itself is a

sweeping term) and that the states cannot interfere with national commercial activ-

ities.71 As the federal courts struggled with the effort to stitch together a national

economy (often by striking down state interference with the free flow of goods),Gib-

bons was an important touchstone.72 For both legal scholars and popular historians

Figure 3. Annual Number of Lower Federal Court Citations to Marbury and Gibbons,1801–2012Source: Westlaw’s Citing References function.

70. See, e.g., Spencer Kellogg and Sons, Inc., v. United States, 20 F.2d 459 (2nd Cir. 1927).71. Gibbons is even more complicated than that, since later interpretations of the case could

point to both the expansive federal powers in this arena and the fact that there were limits tothose powers. Like many canonical works, Gibbons was fertile, offering something in which allsides could engage. For limits on state power to regulate commerce, see Long, Mayor, et al. v.Miller et al., 262 F. 362 (5th Cir. 1919).

72. For example, Pittsburgh & W.V. Ry. Co. et al. v. Interstate Commerce Commission et al.,293 F. 1001 (D.C. Cir. 1923), citing Gibbons, held that states could not interfere with federalregulations concerning how railroads issue stock.


writing at the turn of the twentieth century, Gibbons was an obvious case of “the

greatest importance and of the most lasting consequences.”73 The commercial re-

public being constructed in those decades was being built on the back of Gibbons,

and Marshall was celebrated for laying those strong foundations.74

But again the success of the New Deal created rivals to the glory of Gibbons.

Cases such asWest Coast Hotel v. Parish (1937),U.S. v. Darby (1941), andWickard

went beyond Gibbons and structured the conversation about congressional power

in a new way. Gibbons did not assume a bad odor or fall from the canon in the

second half of the twentieth century, but Marshall’s accomplishments in that case

no longer loomed so large. The efforts of Justice Robert Jackson and his colleagues

could reasonably claim some of the glory that Marshall had once had to himself,

and the cases of the New Deal era became the critical touchstones for understand-

ing the modern constitutional allocation of regulatory authority.

The state supreme courts provide a final perspective from which to view var-

iation in Marshall’s constitutional legacy over time, as shown in Figure 4. The con-

trasting case this time is Fletcher v. Peck, which, like Gibbons, showed a strong,

smooth, continuing pattern of growing citations.75 The Fletcher decision was the

first instance in which the Court struck down a state law as violating the U.S. Con-

stitution and offered a broad reading of the Contract Clause (“No State shall . . .

pass any . . . Law impairing the Obligation of Contract . . .76) to protect property

from state legislatures. Naturally, the Contract Clause held particular importance

among federal constitutional provisions for state courts hearing local cases involv-

ing state laws, but the basic trend is similar to what we observed in the other court

systems. Fletcher enjoyed its moment in the sun in the state courts, before eventually

being displaced by the now familiar blossoming of Marbury. Fletcher (and Dart-

mouth, another important decision that further established the Contract Clause,

follows an almost identical pattern) represents the rise and fall of the Contract Clause

as a significant judicial restraint on legislatures.77

73. Hampton L. Carson, The Supreme Court of the United States, vol. 1 (Philadelphia: A.R.Keller Company, 1892), 259.

74. See, e.g., W.W. Willoughby, The Supreme Court of the United States (Baltimore, Md.:Johns Hopkins Press, 1890), 61.

75. 10 U.S. 87 (1810).76. U.S. Constitution, Article I, section 10, clause 1.77. State court cases between the 1850s and the 1880s show how Fletcher and the Contract

Clause were used to restrain legislatures, often by holding that legislative grants are contracts,and as such are protected by the U.S. Constitution. See State of Arkansas v. County Court ofCrittenden County, 19 Ark. 360 (1858); Stein v. Mayor, etc. of Mobile, 49 Ala. 362 (1873);Grogan v. City of San Francisco, 18 Cal. 590 (1861). This last decision, citing Fletcher, held that


From the late Jeffersonian period through the end of Reconstruction, courts

grappled early and often with the legacy of Fletcher and with the significance of fed-

eral constitutional protections of property rights.78 The Marshallian legacy during

the middle decades of the nineteenth century was bound fast to the judicial protec-

tion of property rights against popular impulses in the states. Fletcher hit a high

water mark in the mid- and late-nineteenth century, however, lapsing into relative

obscurity over the course of the twentieth century. Where the debate over the scope

of federal constitutional rights once revolved around Marshall’s views in cases like

Fletcher, the modern debate, since the demise of Lochner-era jurisprudence in 1937,

turns instead on cases likeUnited States v. Carolene Products (1938),Brown v. Board

Figure 4. Annual Number of State Supreme Court Citations to Marbury and Fletcher,1801–2012Source: Westlaw’s Citing References function.

78. The decline in the contracts clause as a meaningful protection for property rights in theyears after the Civil War was matched by the emergence of the due process clause of the Four-teenth Amendment as a bastion of federal constitutional protections for property rights againststate interference. However, the jurisprudence arising out of the Fourteenth Amendment didnot owe an immediate debt to Chief Justice John Marshall, as justices like Melville Fuller andStephen Field worked to establish property rights as a fundamental constitutional liberty.

all legislative grants are valid contracts and could not be destroyed “by any subsequent legisla-tive enactment.”


of Education (1954), and Griswold v. Connecticut (1965). If Marshall’s reputation

had rested entirely on cases like Fletcher, then he might well have suffered the same

fate as justices like Stephen Field, who was important in his own time but not in

ours. Marshall’s diversified constitutional portfolio could withstand the buffeting

of the historical forces that devalued the importance of judicial protection of vested

property interests.

Conclusion

This initial analysis of the judicial transmission of Marshall’s legacy suggests part

of what has made the memory of the chief justice particularly enduring. The his-

torical reputation of John Marshall is complex and has changed over time. Mar-

shall’s multiple contributions to the workings of the law and the Court have created

multiple opportunities for a variety of interests to claim him as one of their own

and promote him as a valuable ally. Our review of popular and scholarly sources

shows how Marshall’s legacy was a contested site of collective memory for causes

as varied as character formation, property rights, and judicial supremacy, while our

data on citation rates shows how different courts used Marshall’s opinions to pro-

mote economic nationalism and justify an expansive role for the Supreme Court

in advancing a civil rights agenda. Future research on Marshall’s reputation could

explore citation patterns to Marshall’s decisions in scholarly works, competing

portrayals of Marshall in book-length biographies, and the Progressive critiques

of Marshall that flourished in the post-New Deal decades.

Over the long sweep of American history, the values and interests that hold

sway at one time are often displaced by others at a different time. Reputational sur-

vival depends on being able to ride out these storms. In truth, Marshall’s reputa-

tion has not always been as sturdy as it seems now. It is perhaps unsurprising that

shortly after Marshall’s death, the leading Democratic Party newspaper somewhat

sardonically referred to the “great Chief Justice” whose personal qualities were un-

deniable but whose “great mind” was too imbued with a “federal tone of political

principles” that gave birth to a rampant “abuse of the judicial veto.”79 Themantle of

“great” did not sit firmly on Marshall’s shoulders until after the Civil War, when

Republican writers began to routinely praise him for his prescience in producing

“wonderful judicial judgments” that laid down principles “which have been the

sheet anchor of national unity against the disrupting and disintegrating tendencies

79. “The Supreme Court of the United States: Its Judges and Jurisdiction,” United StatesMagazine and Democratic Review 1 (January 1838): 143–72, at 155 and 160.


in our dual system of government”80 and for forcefully exerting “his statesmanlike

conviction that this was and must be a nation” and keeping the disunionist “school

of Jefferson” at bay.81 Gilded Age lawyers gathered to celebrate the “one man in

the history of this country” who had done the most to shape “the very framework

of our institutions,” by establishing the principle that the people and government

were subject to legal limits enforced by courts and that the rights of contract were

protected “from hostile legislation,” a decision that “has been one of the chief causes

of our individual and national prosperity.”82

After the Great Depression, however, references to the “great chief justice” no-

tably fell off or took on an ironic tinge. Left-wing journalist Max Lerner, for ex-

ample, wrote of how the “great Chief Justice” seemed to have cast a “spell” over

his biographer. His “disarming democratic ways” concealed how Marshall used his

position on the Court “to fight the battles of business enterprise.”83 The appella-

tion of “great” did not become fashionable again until the end of the twentieth

century, when Marshall’s name could be invoked for the adaptability of the Consti-

tution and the importance of judicial enforcement of individual rights against mis-

guided majorities without necessarily calling to mind the economic battles of the

first decades of that century.

Fame can be fleeting. Even a towering figure of the early republic like JohnMar-

shall has seen his reputation buffeted by the forces of history. Marshall’s place in

our collective memory has been secured, however, not necessarily by the perma-

nence of his achievements but by their diversity. Even as some parts of his life’s

work have fallen out of favor, other parts have risen in the public mind.

The case of Chief Justice John Marshall illustrates the ways in which historical

memory is always constructed in the present. We remember the departed to the

extent that they help us navigate our present concerns and controversies. The ex-

ample of John Marshall has proven useful again and again, but not always for the

same reasons and to the same people. Like the Constitution itself, Marshall’s his-

torical reputation has been able to endure precisely because it could “be adapted

to the various crises of human affairs.”84

80. Charles Andrews, “Charles James Folger,” Albany Law Journal 32 (July 11, 1885): 33–38, at 37.

81. William Howard Taft, Popular Government (New Haven, Conn.: Yale University Press,1913), 132, 134.

82. John F. Dillon, A Commemorative Address on Chief Justice John Marshall (New York:n.p., 1901), 7, 35, 41.

83. Lerner, Ideas Are Weapons, 28, 29 (see note 36 above).84. McCulloch v. Maryland, 17 U.S. 316, 415 (1819).


Appendix: Number of Citations to Prominent Marshall Opinions byType of Court and Decade

Key for the following tables: The most cited case of the decade is designated by

dark gray, and the second most cited case of the decade by light gray. If the most-

cited or second-most-cited case of the decade is not among our top six, it is not

highlighted.

Table A1. United States Supreme Court’s Citations

McCulloch Gibbons Marbury Cohens Fletcher Dartmouth

1800–1809 0 0 1 0 0 01810–1819 0 0 1 0 3 01820–1829 4 3 3 2 6 11830–1839 6 7 8 10 10 141840–1849 12 9 4 7 7 71850–1859 10 13 5 9 25 151860–1869 14 9 6 11 9 61870–1879 25 28 4 12 16 241880–1889 14 21 13 11 7 81890–1899 19 21 9 17 12 111900–1909 27 27 7 23 6 51910–1919 22 25 2 6 4 61920–1929 25 10 3 11 0 31930–1939 38 24 4 12 7 71940–1949 26 22 7 7 2 61950–1959 20 6 7 9 4 11960–1969 23 15 24 8 9 31970–1979 29 12 25 10 11 61980–1989 29 22 38 12 9 31990–1999 28 13 33 14 8 12000–2009 15 13 29 8 4 2

Table A2. Federal Courts’ Citations


1800–1809 0 0 2 0 0 01810–1819 0 0 0 0 3 01820–1829 0 3 3 1 1 01830–1839 0 4 7 8 4 31840–1849 0 8 4 3 4 11850–1859 0 10 2 0 2 01860–1869 0 9 6 4 5 1


Table A2. (Continued )


1870–1879 0 24 3 16 5 151880–1889 0 39 8 23 17 141890–1899 3 18 15 21 9 231900–1909 5 36 17 40 18 131910–1919 4 36 13 34 8 121920–1929 19 22 10 23 5 141930–1939 37 63 11 44 12 121940–1949 19 36 22 35 5 151950–1959 13 22 36 30 5 121960–1969 19 35 53 41 14 201970–1979 56 75 143 78 32 251980–1989 78 101 248 81 39 181990–1999 90 162 350 102 50 242000–2009 78 189 376 173 20 22

Table A3. State Courts’ Citations


1800–1809 0 0 2 0 0 01810–1819 2 0 9 1 14 21820–1829 11 4 20 5 30 291830–1839 12 7 22 2 50 531840–1849 16 15 24 8 54 901850–1859 43 32 52 28 108 1251860–1869 86 41 42 29 143 1241870–1879 92 38 74 37 126 1771880–1889 42 32 50 29 78 1151890–1899 42 30 54 39 61 1021900–1909 73 56 76 97 49 991910–1919 78 80 90 75 48 851920–1929 106 60 55 54 43 801930–1939 135 55 77 51 36 861940–1949 118 45 42 30 19 521950–1959 73 25 52 17 18 421960–1969 68 29 43 29 13 361970–1979 81 38 119 25 21 361980–1989 125 68 153 31 27 241990–1999 132 94 245 31 33 182000–2009 77 61 336 45 26 8

Source: Westlaw’s Citing References function.

Daniel Frost is Assistant Professor of Political Science at Clemson University,

where he teaches U.S. constitutional law and political theory. He has published ar-

ticles on constitutional interpretation, the history of the U.S. Supreme Court, reli-

gious liberty, and judicial reputation. He can be reached at [email protected].

Keith E. Whittington is William Nelson Cromwell Professor of Politics at Prince-

tonUniversity. He is the author of Constitutional Construction: Divided Powers and

Constitutional Meaning, Constitutional Interpretation: Textual Meaning, Original

Intent, and Judicial Review, and Political Foundations of Judicial Supremacy: The

Presidency, the Supreme Court, and Constitutional Leadership in U.S. History, as

well as many other books and articles. He can be reached at [email protected].


A Man for All Seasons: Historical Memory and John Marshall · 8/14/2017 · Similarly, John Marshall’s reputation has been a contested site of social mem-ory. Many social actors

Documents